During the resolution of civil cases, preventing actions that cause irreversible harm to health or property is essential. Thus, the 2015 Civil Procedure Code (“CPC”) provides for provisional emergency measures (“PEMs”) as an effective tool to protect the interests of the parties involved. However, applying these measures is not arbitrary and must meet specific conditions as detailed in Article 115 to Article 131. This article will analyze the conditions for application according to current regulations.
1. Eligible applicants
In the process of resolving civil disputes, the right to request the application of PEMs belongs to parties such as the involved parties, legal representatives of involved parties, or institutions, organizations, and individuals initiating the lawsuit as prescribed in Article 187 of the CPC. These parties have the right to request the court handling the case to apply one or more measures stipulated in Article 114 of the CPC to address urgent requests of the parties promptly. The purpose is to protect life, health, and property, gather evidence, or maintain the current status to prevent irreversible damages and ensure the resolution of the case.
In cases of particular urgency, to protect evidence immediately or to prevent severe consequences that may occur, institutions, organizations, or individuals may also request the competent court to apply PEMs simultaneously with filing the lawsuit.
However, courts only issue decisions to apply provisional emergency measures in specific cases stipulated in Article 135 of the CPC. This means only entities with the right to request under legal provisions can propose the application of PEMs.
For institutions and organizations, the right to request PEMs belongs to the respective institution or organization. In the case of individual involved parties, such individuals may authorize others to participate in the proceedings. Legal representatives under such authorization are also permitted by law to request the court to apply PEMs when necessary.
Courts will consider and decide on the application of PEMs only when all required legal conditions are fully satisfied. In practice, courts seldom proactively apply these measures unless explicitly stipulated by law. Proactive application of PEMs not only aims to protect the immediate interests of the involved parties but also serves a broader goal of protecting life, as well as the interests of workers and the community. Therefore, in civil cases, only the involved parties or their legal representatives have the right to request the court to apply one or more provisional emergency measures.
2. Conditions for the application, urgency of protecting rights and implementing security measures
The application for provisional emergency measures (PEMs) serves as the legal basis to determine the rights and responsibilities of the applicant, the court, the person against whom the measure is applied, or any third parties involved. The aim of applying PEMs is to ensure the protection of properties, and evidence, or settle urgent situations related to the interests of the parties involved. Therefore, the court not only assesses the conditions for initiating legal action but also evaluates the necessary factors to apply PEMs as stipulated in paragraph 2 of Article 111 of the CPC.
The urgency of applying provisional emergency measures is determined based on the level of risk to the legitimate rights and interests of the involved parties. When these rights and interests are threatened or need immediate protection, the court may apply PEMs to prevent serious consequences that may arise.
The condition for implementing security measures is also a mandatory factor in many cases. The applicant for PEMs must demonstrate the necessity of the measure while ensuring that it does not excessively affect the rights of the person against whom the measure is applied or third parties. To prevent the abuse of this request, the CPC stipulates that the applicant must provide a financial guarantee when requesting the court to apply emergency measures.
According to paragraph 1 of Article 136 of the CPC 2015, an applicant requesting PEMs for measures specified in paragraphs 6, 7, 8, 10, 11, 15, and 16 of Article 114 must implement a security measure. The purpose of this requirement is to hold the applicant financially accountable in cases where the request is unjustified and causes damage to the party against whom the measure is applied or to a third party. Additionally, the security measure aims to protect the rights of the person against whom the measure is applied and maintain balance among the parties in a civil case.
This concludes the article “Regulations on the Conditions for Applying Provisional Emergency Measures in Code of Civil Procedure” by TNTP. We hope this article is informative for those interested in this topic.
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